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Sha Velji Devashi Vs. Commercial Tax Officer, Haveri - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2634 of 1963
Judge
Reported in(1966)1MysLJ141; [1966]18STC197(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 4, 5(4), 7, 23 and 40; Mysore Sales Tax (Amendment) Act, 1958 - Sections 7; Mysore Sales Tax Rules - Rule 6; Constitution of India - Articles 200, 226, 245 and 245(1); Orissa Hindu Religious Endowments Act, 1952 - Sections 79-A; Orissa Hindu Religious Endowments (Amendment) Act, 1954; Utter Pradesh Agricultural Income-tax Act, 1948 - Sections 11
AppellantSha Velji Devashi
RespondentCommercial Tax Officer, Haveri
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateG.B. Kulkarni, High Court Government Pleader
Excerpt:
.....act, 1958, section 6 of act 26 of 1962 and articles 245 (1) of constitution of india - whether state legislature competent to enact section 6 - whether impugned provision does in any manner affect court's jurisdiction under article 226 - state legislature enacted section 6 which gave retrospective operation to 1958 amendment - allegedly legislature has no such power and section 6 violative of article 245 thus void - legislature well within its legislative competence in enacting section 6 - article 226 not impaired as result of impugned provision - petitioner successfully approached this court on former occasion - if he is unsuccessful on this occasion, it is because defect in law has been cured retrospectively and not because either this court's power is derogated or its discretion..........this court held that the amendment in question was prospective in character. thereafter the state legislature enacted act 26 of 1962, the provisions of which among other things gave retrospective operation to the 1958 amendment referred to earlier. section 6(1) of that act (the amending act 26 of 1962) provides :- 'anything done or any action taken, or purported to be done or taken (including the determination of the total and taxable turnover of any person under rule 6 of the mysore sales tax rules, 1957, any notices or orders issued, or assessments, reassessments, payments or recoveries made, and all proceedings held for the levy, assessment or reassessment and collection of tax or licence fee) before the date of commencement of this act under the principal act, or under any.....
Judgment:
ORDER

Hegde, J.

1. In this writ petition under Article 226 of the Constitution, the petitioner prays for a writ of mandamus or any other appropriate writ, order or direction as the Court deems fit directing the respondent to effect necessary corrections in the order of assessment No. DR/CT/(iii)T. 46 dated 15th May, 1961, in pursuance of the order of this Court in Writ Petition No. 916 and to refund to him the excess tax collected.

2. Among other things, the petitioner deals in cotton and groundnut seeds. For the period from 24th October, 1957, till 11th November, 1958, his purchase transactions relating to cotton and groundnut seeds were assessed to sales tax under section 5(4) read with Schedule 4 of the Mysore Sales Tax Act, 1957, to be hereinafter referred to as the Act. At the time of the assessment, section 7 of the Act read as follows :-

'The tax under this Act shall be levied on any transaction of sale or purchase deemed to take place inside the State under this Act or any other law for the time being in force. The provisions of this Act relating to taxation on sales or purchases inside the State only at a single point or only at one or more stages apply only to the sales inside the State.'

3. On the basis of this provision, the petitioner contended before the Commercial Tax Officer, Haveri, that transactions were not exigible to tax. But it was negatived. Aggrieved by that decision, he came up directly to this Court in Writ Petition No. 916 of 1961, challenging the validity of the levy. By that time, this court had already pronounced on the scope of the aforementioned section 7 in C. Mallarappa & Sons v. The State of Mysore ([1962] 13 S.T.C. 400.). Therein this Court held that the department was not competent to levy sales tax in respect of purchase transaction. The Legislature amended section 7 of the Act by Act 32 of 1958. By that amendment in the place of the words 'apply only to sales' the words 'apply to sales or purchases' were submitted. The scope of that amendment again came up for consideration. This Court held that the amendment in question was prospective in character. Thereafter the State Legislature enacted Act 26 of 1962, the provisions of which among other things gave retrospective operation to the 1958 amendment referred to earlier. Section 6(1) of that Act (the amending Act 26 of 1962) provides :-

'Anything done or any action taken, or purported to be done or taken (including the determination of the total and taxable turnover of any person under rule 6 of the Mysore Sales Tax Rules, 1957, any notices or orders issued, or assessments, reassessments, payments or recoveries made, and all proceedings held for the levy, assessment or reassessment and collection of tax or licence fee) before the date of commencement of this Act under the principal Act, or under any enactment repealed by section 40 of the principal Act, shall, notwithstanding any judgment, decree or order of any court, tribunal or other authority, be deemed to have been validly done, taken, determined, issued, made or held and shall have effect for all purposes, as if it had been done, taken, determined, issued, made or held under the principal Act as amended by this Act, or under the relevant repealed enactment as amended by this Act, or under rule 6 of the Mysore Sales Tax Rules, as specified in the schedule to this Act, as the case may be; and accordingly, -

(a) no suit or other proceeding shall be entertained or continued in any court for the refund of any tax or licence fee paid under the principal Act or under the relevant repealed enactment;

(b) no court shall enforce any decree or order directing the refund of any tax or licence fee paid under the principal Act or under the relevant repealed enactment;

(c) any tax or licence fee may be assessed or reassessed or recovered under the principal Act as amended by this Act, or under the relevant repealed enactment as amended by section 4 of this Act.'

4. In view of this amendment, the Commercial Tax Officer, Haveri, did not give effect to the direction given by this Court in Writ Petition No. 916 of 1961 wherein this Court required him to make the necessary corrections in the assessment order on the basis of our decision in C. Mallarappa's case ([1962] 13 S.T.C. 400.). It is complained that the Commercial Tax Officer erred in doing so. It was further contended that the provisions of section 6 of Act 26 of 1962 in so far as it purports to validate an assessment struck down by this Court is violative of Article 245 of the Constitution and hence void.

5. There is no dispute that on a true interpretation of section 6 of Act 26 of 1962 it purports to validate even assessments which had been declared to be invalid by any court including this Court. The only question is whether the Legislature had the competence to enact that provision. It was urged on behalf of the petitioner that it had no such power but, on the other hand, it was contended by the learned Government Pleader that the Legislature was well within its legislative competence in enacting section 6 of Act 26 of 1962.

6. There is no dispute that the State Legislature has legislative competence to enact laws relating to levy of sales tax. But it was urged that any law enacted by the Legislature in pursuance of its legislative power cannot infringe Article 245 of the Constitution and it was further urged that the provision with which we are concerned in this case is violative of Article 245(1).

Article 245(1) says :

'Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.'

7. In view of this provision, the power of the Parliament or that of the State Legislature to make laws within the legislative filed reserved for either of them is subject to the other provisions of the Constitution. Article 226 of the Constitution is undoubtedly one such provision. Therefore, there can be no doubt that the State Legislature or for that matter even the Parliament cannot enact any law in pursuance of its power under Article 245 which affects the power conferred on the High Court under Article 226. That position is made clear by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj : [1962]45ITR414(SC) . But the real question for decision is whether the impugned provision does in any manner affect this Court's jurisdiction under Article 226 of the Constitution.

8. A contention somewhat similar to the one before us came up for consideration before a Bench of this Court of which one of us was a member in Writ Petition No. 306 of 1963. Dealing with that contention, this is what was observed in that case :

'It was urged by Mrs. Shyamala Pappu, the learned counsel for the assessee that the amendments effected to section 7 of the Act by means of section 2 of the Amendment Act No. 26 of 1962 is derogatory of the powers of the High Court and that being so, it was incumbent on the Governor to reserve the Amendment Act for the assent of the President in view of Article 200 of the Constitution. Quite evidently, the learned counsel is mistaking the adverse effect of the amendment on the assessee, with the powers of the High Court. The amendment does not affect the powers of the High Court, though no doubt it affects some of the decisions rendered by this Court.'

9. The above-mentioned statement of law receives full support from the decision of the Allahabad High Court in Prem Narain Tandon v. State of Uttar Pradesh and Another : AIR1960All205 . Dealing with a contention similar to the one advanced before this Court, this is what Bhargava, J., observed in that case :

'The learned counsel for the applicants contended that the Legislature has, in effect, taken away the powers of the High Court and had made it helpless on account of this Ordinance and, therefore, it derogated the High Court from the powers, which it possessed under the Constitution, and it being an Ordinance of such a nature by proviso (c) to Article 213 it should have received instructions from the President before it could be promulgated.

We are unable to agree with this contention. This Ordinance in no way purports to affect the powers of the High Court. It may have affected the rights of a party before the High Court but the powers of the High Court have remained the same. If an Act is passed during the pendency of a case which affects the rights of the parties, it cannot be said that there has been any derogation from the powers of the High Court which endangers the position of that Court which by the Constitution it is designed to fill. This argument, therefore, does not affect the validity of the Ordinance.'

10. Dealing with the width of the power of the Legislature to enact a legislation, the Supreme Court in Rai Ramkrishna and Others v. State of Bihar : [1963]50ITR171(SC) observed that the entries in the Seventh Schedule of the Constitution of India conferring legislative power of the Legislature must receive the widest denotation. It further laid down that the legislative power conferred on the appropriate Legislatures to enact law in respect of topics covered by the several entries in the three lists can be exercised both prospectively and retrospectively. Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law, but it can also provide for the retrospective operation of the said provisions. Proceeding further, it observed that the legislative power conferred on the Legislature includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a Legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed.

11. In Sadasib Prakash Brahmchari v. The State of Orissa : [1956]1SCR43 , the Supreme Court upheld the validity of Section 79-A of the Orissa Hindu Religious Endowments Act, 1952, as amended in 1954. Under that provision, certain schemes which had been struck down by the Supreme Court as being invalid were validated. It was urged before the Supreme Court that such a validation affected the powers of the Supreme Court. Repelling that contention, this is what the Supreme Court observed :-

'We can see no reason for thinking that such a provision is not within the competence of the Legislature. It has been suggested that this is really interfering with the jurisdiction of this Court under Article 32. But there is no substance in that suggestion. The right of any person to seek remedy under Article 32 in respect of any violation of his fundamental rights is in no way curtailed or affected by the fact that an actual decision of this Court on an application under Article 32 is, in affect, nullified by appropriate and competent legislative measures.

Indeed, the right has been, in fact successfully invoked on the prior occasion and has again been invoked on the present occasion. If it fails this time it is not because the right and the remedy under Article 32 have been taken away or affected but because the unconstitutionality has been removed. Section 79-A, therefore, is not open to any objection on the ground of legislative incompetence.'

12. These observations fully apply to the facts of the present case. It is not correct to contend that as a result of the impugned provision, either the power of this Court under Article 226 is impaired or even the right of an aggrieved party to approach this Court is taken away. The petitioner had successfully approached this Court on the former occasion. If he is unsuccessful on this occasion, it is because the defect in the law has been cured retrospectively and not because either this Court's power is derogated or its discretion interfered with.

13. In support of his contention, Mr. Joshi, the learned counsel for the assessee, tried to take assistance from certain observations made by this Court in Writ Petition No. 306 of 1963. As seen earlier, in that case, we had come to the conclusion that it is one thing to affect the rights of the parties and wholly a different thing to affect the power of this Court and what is relevant is the power of this Court and not the rights of parties who seek relief from this Court. After saying so, this Court proceeded to consider what would be the legal position on the facts of that case, even if the amendment is held to affect the power of the Court. In that case, the decision of this Court was rendered in a revision petition filed under section 23 of the Act. Hence it was observed that the power exercised by this Court in that case was not a constitutional power but a statutory power. That power had been conferred on this Court by the State Legislature and hence that Legislature had competence to take away or modify the scope of that power. Mr. Joshi is not right in thinking that in that case this Court had come to the conclusion that any retrospective legislation which affected any decision rendered by this Court would amount to an interference with the power of this Court under Article 226 of Constitution.

14. A great deal of reliance was placed by Mr. Joshi on the decision of the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj : [1962]45ITR414(SC) in support of his contention. In that case, the assessee had been assessed on the basis of the Utter Pradesh. Agricultural Income-tax Act, 1948. Aggrieved by that assessment, the assessee approached the High Court of Allahabad under Article 226 of the Constitution. The assessment in question was quashed by that High Court. Thereafter the State Legislature amended section 11 of the U.P. Agricultural Income-tax Act, 1948, and provided :

'Where before the commencement of this Act any court or authority had, in any proceedings under the principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector in charge of a sub-division merely on the ground that the assessing authority had no jurisdiction to make an assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the court or authority for a review of the proceedings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review the proceedings accordingly and make such order, is any varying or revising the order previously made, as may be necessary to give effect to the provisions of the principal Act as amended by sections 2 and 8 of this Act.'

15. After that amendment, the assessing authority approached the High Court to review its earlier order. The High Court refused to do so. It held that section 11 of the U.P. Agricultural Income-tax Act did not entitled the assessing authority to file an application for review of an order made under Article 226 of the Constitution. Section 11 applied only to orders made in proceedings under the U.P. Agricultural Income-tax Act, 1948; the order in that case was not made under any such proceedings; it was made in exercise of the power of the High Court under Article 226 of the Constitution; therefore section 11 did not authorise the application made. It further held that the State Legislature had no competence to direct the High Court to review its order made under Article 226 of the Constitution nor it could require the High Court to make an order in a particular manner. These conclusions of the High Court were confirmed by the Supreme Court in the above-cited case. We do not think that this decision lends any support to Mr. Joshi's contention.

16. For the reasons mentioned above, we do not think that the relief prayed for by the petitioner can be granted to him. Hence this petition fails and the same is dismissed. No costs.

17. Petition dismissed.


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